Buchanan v. Rose

296 S.E.2d 508, 59 N.C. App. 351, 1982 N.C. App. LEXIS 3103

Opinion

ARNOLD, Judge.

Defendants attack the refusal of the trial judge to allow them to amend their answer. Under G.S. 1A-1, Rule 15(a), amendment of a pleading after the time for pleading has expired is “only by leave of court or by written consent of the adverse party, and leave shall be freely given when justice so requires.” But an order denying a motion to amend pleadings is an interlocutory order, and is not immediately appealable. Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E. 2d 484, 488 (1972). See also, O'Neill v. Bank, 40 N.C. App. 227, 230, 252 S.E. 2d 231, 234 (1979).

Although this appeal is not from a final order, G.S. 7A-27(d) allows appeal as a matter of right from an interlocutory order which

(1) Affects a substantial right, or

(2) In effect determines the action and prevents a judgment from which appeal might be taken, or

(3) Discontinues the action, or

(4) Grants or refuses a new trial.

This statute should be strictly construed for “the purpose of eliminating the unnecessary delay and expense of fragmented appeals and of presenting the whole case for determination in a single appeal from a final judgment.” Funderburk v. Justice, 25 N.C. App. 655, 656, 214 S.E. 2d 310, 311 (1975).

We do not find that a substantial right of the defendants will be irreparably damaged if we do not allow this appeal. This case is not like Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E. 2d 119, disc. rev. denied, 294 N.C. 736, 244 S.E. 2d 154 (1978), where it was held that denial of a motion to amend an answer to assert a compulsory counterclaim affected a substantial right. The court in Hudspeth found that failure to assert a compulsory counterclaim will ordinarily bar future action on the claim. Here, the case can proceed to trial with the loser there having a right of appeal to this Court. None of the other three exceptions in G.S. 7A-27(d) is applicable here.

As a result, we dismiss this appeal as interlocutory.

Dismissed.

Judges Martin and Whichard concur.